Jacobsen v. Muller , 181 Ga. App. 382 ( 1986 )

Benham, Judge,

concurring in part and dissenting in part.

While I concur fully with the majority in Divisions 1, 2, and 3, I cannot agree that the grant of summary judgment to appellees was appropriate.

On motion for summary judgment, the burden is on the movant, regardless of which party would have the burden of proof at trial, to show there is no genuine issue of material fact. All evidence is to be construed most strongly against the movant, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. Fiumefreddo v. Scudder, 252 Ga. 279, 282 (313 SE2d 683) (1984). See also Ga. Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 345 (333 SE2d 618) (1985). On motion for summary judgment, the movant must negate every theory of recovery which the non-moving party might have. Reid v. Reid, 246 Ga. 592 (2) (272 SE2d 685) (1980).

Appellant’s contentions, as contained in the pre-trial order (see OCGA § 9-11-16 (b)), were: appellees had breached their contractual and fiduciary obligations by totally failing to assist appellant in obtaining employment, and had failed to provide her with proper psychological counseling services and testing; appellees had negligently failed to provide appellant with psychological counseling and had failed so outrageously to comply with generally accepted standards for providing psychological care that appellant was entitled to exemplary damages; and appellee Muller, while acting within the scope of his DBM employment and in his professional capacity as a psychologist, had committed professional malpractice by entering into a sexual relationship with appellant. The majority addresses only the last allegation, failing altogether to address appellant’s breach of contract claims.

Appellant’s breach of contract claims are necessarily based upon the existence of contractual obligations on DBM’s part to provide appellant with assistance in obtaining employment and to provide her with psychological services. Through its oral contract with appellant’s former employer, DBM offered appellant job counseling services which consisted of vocational testing, efforts to identify a career objective, and advice and instruction to aid in marketing one’s self. DBM has not presented any evidence by which it negates appellant’s assertion that DBM had failed to live up to its contractual duty to aid appellant in finding employment. Thus, it appears that a question remains whether DBM breached its contract to provide job counseling services to appellant, and summary judgment on this issue was inappropriately granted.

A similar analysis applies to appellant’s contention that appellees breached a contractual duty to provide psychological services to her. By means of an uncontroverted affidavit, the officer who on behalf of DBM contracted with appellant’s former employer to provide appellant job counseling services stated that no medical services, including psychological diagnosis, care, or treatment, were requested, offered, or contracted. However, a vice-president of DBM executed an affidavit in which he acknowledged that DBM employed a psychologist, in this case appellee Muller, “for the sole purpose of reviewing vocational guidance tests in the event that a client chose to take such tests.” Thus, a very limited psychological service was offered appellant within the scope of the job counseling she was receiving. If appellant can establish that DBM, acting through its employee Muller, improperly reviewed or failed to review her vocational guidance test results, she may be able to establish a breach of contract involving the limited psychological service to which she was entitled under the contract to provide job counseling. Again, no evidence negating appellant’s assertion is contained in the record. Therefore, summary judgment on appellant’s breach of contract claim was inappropriate.

Appellant next contends that appellees negligently failed to provide her with psychological counseling and so outrageously failed to comply with generally accepted standards for providing psychological care as to entitle her to exemplary damages. Again, I am restricting the scope of appellant’s allegation to the limited area of psychological aid provided by appellees pursuant to the job counseling contract, that is, Muller’s expertise as a psychologist used solely to review vocational guidance tests appellant may have taken. There is no evidence in the record to refute appellant’s allegation that appellees did not provide the limited psychological service of test review. Furthermore, there is no evidence refuting her assertion that failure to provide the limited psychological service within the job counseling service is a breach of the generally accepted standard for providing psychological care. I again reach the conclusion that summary judgment for appellees was inappropriate on the issue of negligent failure to provide appellant with the limited psychological service to which she was entitled, as well as on the issue of whether failure to provide the service was a breach of the generally accepted standard for providing psychological care.

Appellant’s final contention is that appellee Muller, while acting within the scope of his employment with DBM and in his professional capacity as a psychologist “abused his position of power and trust” and entered into a sexual relationship with appellant, thereby committing professional malpractice. The affidavit of DBM’s vice-president establishes that Muller was used as a psychologist in one aspect of DBM’s contractual relationship with appellant, i.e., as a reviewer of vocational guidance tests. Therefore, a professional relationship between Muller as a psychologist (albeit in a very limited role) and appellant existed. While both DBM and Muller argue that the diagnosis or treatment of psychological problems of any of DBM’s clients was not offered by DBM and Muller was not authorized to perform any such service, I am not focusing on the diagnostic and treatment roles of a psychologist. I am only looking at the role which DBM has admitted a psychologist plays in its job counseling service. The record does not contain any evidence negating the allegation that Muller engaged in a sexual relationship with appellant within his limited role as a psychologist in the employ of DBM. The record contains no refutation of the allegation that a sexual relationship with a DBM client whose vocational guidance test results were reviewed by Muller, acting as a psychologist, was within the parameters of Muller’s employ. In the absence of appellees’ negation of appellant’s allegations, and in light of the fact that Muller played a role, though limited, as a psychologist vis-a-vis appellant, summary judgment for appellees was not warranted.

Both the majority opinion and the special concurrence recognize that appellee Muller had a professional relationship as a psychologist with appellant. The majority concludes, however, that summary judgment for appellees was proper because: (1) it was undisputed that appellant knew the personal relationship was beyond the scope of Muller’s duties as a job counselor; (2) appellant responded positively to Muller’s advances; and (3) appellant did not contend she was led to believe that the personal relationship was a necessary ingredient of the job counseling. I disagree. In the first place, the fact that appellant believed Muller did not want anyone in his office to know about their relationship does not mandate the conclusion that appellant knew the relationship was beyond the scope of Muller’s professional duties. It must be remembered that appellant, as the party opposing summary judgment, is entitled to the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. Fiumefreddo v. Scudder, supra. Secondly, if by positively responding to Muller’s advances appellant “assumed the risk,” thereby precluding recovery on her part, then no person engaged in sexual activity with a person with whom he/she has a doctor-patient relationship is entitled to recover. However, that cannot be, since, in St. Paul Fire &c. Ins. Co. v. Mitchell, 164 Ga. App. 215 (296 SE2d 126) (1982), we recognized, without declaring that the patient had assumed the risk, the ability of a patient to bring suit against her physician with whom she had engaged in a sexual relationship.

Finally, I cannot agree with the majority’s conclusion that appellant does not contend she was led to believe that the personal relationship was a necessary ingredient of the job counseling. Appellant, in the pre-trial order, alleged that appellant Muller, while acting within the scope of his DBM employment and in his professional capacity as a psychologist, had committed professional malpractice by entering into a sexual relationship with her. Since appellees moved for summary judgment they had the burden of affirmatively negating appellant’s allegation that malpractice occurred when Muller, acting as a psychologist within the confines of his DBM employment, committed malpractice by engaging in a sexual relationship with appellant. The record contains no refutation of appellant’s allegation; therefore, summary judgment for appellees was inappropriate.

The special concurrence seeks to overrule Long v. Adams, 175 Ga. App. 538 (333 SE2d 852) (1985). The special concurrence opines that “to allow the appellant to recover under the facts of this case would in effect have this court endorse a quixotic view that the virtue of women must be defended whether it exists or not.” Still not having spent its force, the special concurrence counsels a laissez-faire approach to justice by quoting from a century-old case, Dyar v. Walton, Whann & Co., 79 Ga. 466, 469-470 (1887): “Courts do not attempt to guard men against their own rashness and folly, but will leave them as free agents to protect themselves.” Hopefully, we have made some advances in social relations in the past century, and we no longer apply turn-of-the-century industrial revolution principles to the realities of the present world.

Decided December 5, 1986 Rehearing denied December 19, 1986 Glenville Haldi, for appellant. Daniel S. Reinhardt, James A. Gilbert, for appellees.

After initially stating that Long v. Adams should be overruled if it disagrees with the matters contained in the special concurrence, the special concurrence goes on to say that Long v. Adams should be overruled in its entirety because it rewards the “initially promiscuous.” The wisdom of Long is apparent on the face of the opinion, and no restatement of those reasons is necessary here. Nevertheless, the special concurrence entirely misses the point of Long: Long simply applied traditional tort principles in holding a party liable for his negligent acts, the same as we have held promiscuous parties liable for the support of the child born out of wedlock. OCGA § 9-11-14; Cummings v. Carter, 155 Ga. App. 688 (272 SE2d 552) (1980). See also McKinsey v. Wade, 136 Ga. App. 109 (220 SE2d 30) (1975), which allows recovery on behalf of a minor child killed while tampering with a cigarette vending machine which was wired with dynamite; and Morton v. Gardner, 242 Ga. 852 (252 SE2d 413) (1979), which allowed a doctor to bring a libel action even though his conduct might have been unethical, felonious, reprehensible, and without good conscience.

The special concurrence would have us adopt its general statements as to the relationship between men and women as being firmly fixed principles in our body of law, and it seizes upon this opportunity to canonize those general statements.

While Long serves only as a physical precedent and not a binding precedent since it was a three-judge decision with two judges concurring in judgment only, the special concurrence would have this court take a 180-degree turn in less than a year’s time, not because Long contained erroneous principles of law but because, when applied, Long may produce a result that runs counter to pronouncements made in the special concurrence.

I respectfully dissent from Division 4 of the majority opinion.